Central Administrative Tribunal - Mumbai
Priyesh Bheda vs M/O Finance on 27 October, 2017
1 OA No. 523/2016
CENTRAL ADMINISTRATIVE TRIBUNAL
MUMBAI BENCH, MUMBAI
ORIGINAL APPLICATION No.523/2016.
Dated this Friday the 27th day of October, 2017
CORAM: HON'BLE SHRI ARVIND J. ROHEE, MEMBER (J)
HON'BLE SHIR R. VIJAYKUMAR, MEMBER (A)
Priyesh Bheda, IRS,
Presently posted as Asst.Director,
Directorate-General of Performance
Mgmt., Customs & Central Excise,
4th Floor, Transport House,
Poona Street, Masjid (E),
Mumbai 400 009. ... Applicant
( In Person )
Versus
1. Union of India,
Through the Secretary to the
Govt. of India, Dept. of Revenue,
Ministry of Finance, North Block,
New Delhi 110 001.
2. The Addl. Director-General of Performance
Mgmt., Customs & Central Excise,
4th Floor, Transport House,
Poona Street, Masjid (E),
Mumbai 400 009. ... Respondents
(By Advocate Shri R.R. Shetty )
Reserved on : 09.10.2017.
Pronounced on : 27.10.2017.
ORDER
Per : Shri A.J. Rohee, Member (J)
The applicant who is presently working as Assistant Director in Directorate General of Performance Management, Customs and Central Excise, Mumbai under Respondent No.2 approached this Tribunal under Section 19 of the 2 OA No. 523/2016 Administrative Tribunals Act, 1985 seeking the following reliefs;
"(a) The Respondent Department be directed to grant ad-hoc promotion to the applicant from the dae of such promotion granted to his immediate junior, i.e. w.e.f. 09.10.2012.
(b) Direct the respondents to re-consider the applicant's representation dated 08 July 2015 and 14 May 2015, after laying down the law with respect to clearance from Vigilance Angle.
(c) Direct the respondents to produce all the records of the case along with their reply for perusal by this Hon'ble Tribunal;
(d) Allow the cost of this application to the applicant.
(e) Pass such other orders or reliefs as deemed fit and proper in the facts and circumstances of the case in the favour of the applicant and against the respondent Department."
2. The facts of the case in nutshell may be stated as under;
In July 2007, the applicant qualified Civil Services Examination of the year 2006. He was then allotted IRS (Indian Revenue Service) (C&CE). Previously, the applicant was appointed in Junior Time Scale. The Indian Revenue Service, 2006 batchmates were granted adhoc promotion to Senior Time Scale (for short STS) in Grade Pay of Rs.6600/- w.e.f 09.10.2012. The applicant was however not included in the Panel for promotion although he was eligible and his 3 OA No. 523/2016 immediate junior Shri Suresh Chand Mukeria was granted promotion as STS.
On 18.10.2012, the applicant forwarded a representation for grant of STS promotion to him. During the period from the year 2012 to 2015, the applicant submitted various representations for grant of deputation to various Government departments. However, it was not considered for want of vigilance clearance. The Applicant also took recourse to the provisions of RTI Act during above period to know the reason behind denial of promotion to STS and his posting on deputation. Since the subsequent batch-mates, who were junior to the applicant were granted adhoc promotion to STS on 08.07.2015, he submitted another representation for seeking promotion to STS. However, since there was no response from the other end, he filed previous OA No.654/2015 for necessary redress. The said OA was disposed of by order dated 21.10.2015 wherein the respondents were directed to consider the representation of the applicant and pass speaking order thereon. In compliance of it, the impugned order dated 10.06.2016 is passed by the respondents declining to grant promotion to him even on 4 OA No. 523/2016 adhoc basis for pending prosecution against him in Criminal Court.
It is stated that no vigilance case is pending against the applicant. However, as per the impugned order the promotion was rejected to him on the ground that he was not cleared from vigilance angle in the year 2012, when two candidates from IRS 2007 Batch were granted ad- hoc promotion and even till the date of passing of the impugned order, his request was not considered favourably.
3. The reliefs sought are based on the following grounds as mentioned in para 5 of the OA. The same are reproduced here for ready reference;
"5.1 That the ad-hoc promotion has been denied in violation of the instructions contained in the various instructions of the Government of India, including those submitted at Annexure A-6, A-7 and A-8.
5.2 That the applicant has a strong case for grant of ad-hoc promotion in view of para 5 of the OM at Annexure A-6, which makes provision for delay in such cases beyond two years. The Respondent Department have failed to appreciate that the criminal case against the applicant is merely counter-blast to the earlier case filed by him against the said party, and has no bearing on the official duties, and the alleged incident took place before joining the Indian Revenue Service.
5.3 That even after the criminal proceedings have been subjected to a stay order from the Hon'ble High Court, the Respondent Department 5 OA No. 523/2016 still considering the case as 'pending'. A copy of the order of the Hon'ble High Court is submitted at Annexure A-5.
5.4 That the Respondent Department has not considered the fact that at this stage the applicant has not been seeking full promotion, but only ad- hoc promotion to STS. They have failed to appreciate the case of Shri Dinesh M N, IPS, which is referred to in he Representation mentioned above. This IPS officer of the 1995 Batch was arrested in certain criminal cases and remained in prison for several years. When he received bail and joined duty, he was given all the three promotions due to him, but with the caveat that these are on ad-hoc basis. Annexed hereto is copy of the order at Annexure A-10. The Applicant is also seeking merely ad-hoc promotion.
5.5 That the instant case has not been considered in the light of para 5 to 5.2 of the OM dated 14.09.1992 (Annexure A-6) , despite several representations drawing the attention of the Respondent Department.
5.6 That the denial of ad-hoc promotion by the respondents is also against the well settled principles laid down by the Hon'ble Supreme Court of India and this Hon'ble Tribunal in catena of cases, more particularly the case of Neeraj Kumar V. The Union of India, OA No.764/2011, CAT, Principal Bench, New Delhi. There have been certain other case law also on the subject such as Gurpreet Singh Bhullar & Anr. Vs. The Union of India, Supreme Court of India, Appeal (Civil) No.1586/2006.
5.7 That the applicant has obtained information under the RTI that based on the records of the Director - General of Vigilance, CBEC, his case does not fall under any of the four categories for denial of promotion. Hereto annexed and marked as Annexure A-12 is a copy of the departmental OM dated 08.08.12 bearing F.No.B-11015/22/2012-Ad.V regarding vigilance status. It may be seen that there are four columns viz. Suspension, disciplinary proceedings pending, sanction for prosecution and undergoing penalty. For the applicant's name, all for columns bear 6 OA No. 523/2016 remark "No".
5.8 Vide para 9 of the impugned order, the Vigilance Division has informed that the applicant is not clear from vigilance angle. However, this information was given only vide OMs dated 17.05.2016 and 27.05.2016. There is nothing on record to show that there was such a problem in 2012 also, and his is mentioned only cursorily in para 9 but is not mentioned in the relevant para no., 6 to 8. Thus, this has been invoked only as an afterthough.
5.9 The said speaking order does not enlighten as to what is the Vigilance issue, since the applicant has never been served with Charge- sheet or any Memo till date."
4. Along with OA, MA 784/2016 is filed for condonation of delay of two years, two months and four days to approach this Tribunal. It is stated that it was not due to lethargy on his part, since he was very much interested in getting the promotion. However, the respondents delayed consideration of his representation and passing order on it. It is stated that the applicant was due for promotion on 09.10.2012. However, since his juniors were promoted, he submitted representation dated 18.10.2012. He awaited for response on it for a period of six months i.e. till 17.04.2013. However, since no orders was passed by the respondents, the period of one year thereafter to approach this Tribunal expired on 16.04.2014 and the present OA was 7 OA No. 523/2016 filed on 20.04.2016. Hence, delay is liable to be condoned although OA is filed within a period of one year from the date of the impugned order.
5. The Respondents by a common reply dated 13.12.2016 resisted the OA by denying all the adverse averments, contentions and grounds raised therein. It is stated that the applicant seeks ad-hoc promotion to the post of Deputy Commissioner of Customs (STS) w.e.f. 09.10.2012 on par with his junior. It is stated that there is no violation of Government of India's instructions since applicant's name was first considered in DPC held on 29.08.2012 and 04.09.2012 for promotion to the Grade of Deputy Commissioner of Customs and Central Excise on ad-hoc basis. The DPC took a decision to treat officers having three or more ACRs with grading of 'Good and above' as fit for promotion. However, since the applicant had only one ACR (for the period 2009-10) out of four reckonable ACRs (for the period from 2007-08 to 2010-11) his name was deferred. The Applicant was again considered in the DPC held on 18.04.2013, 06.06.2013 and 10.06.2013 for promotion to the grade of Deputy Commissioner of Customs and Central Excise on ad-hoc basis. This time also 8 OA No. 523/2016 the DPC took a decision to treat officers having three or more ACRs with grading of 'Good and above' as fit for promotion. However, this time also since the applicant had got only two ACRs (for the period 2009-10 and 2011-12) out of four reckonable ACRs (for the period from 2008-09 to 2011-12), his name was again deferred. His name was again considered by the DPCs held on 29.06.2014, 31.10.2015 and 31.03.2016 for promotion to the grade of Deputy Commissioner of Customs and Central Excise on ad-hoc basis. The recommendations of the above three DPCs were however kept in a sealed cover on the ground that prosecution for offences under Indian Penal Court was filed against the applicant in the Court of Metropolitan Magistrate Kurla, Mumbai which is still pending. It is also found that another case arising out of FIR No.23/08 u/s 420, 465, 477 & 471 of IPC is registered against the applicant at Sion Police Station on 22.01.2008 and charge-sheet to this effect is submitted to Metropolitan Magistrate Court Kurla on 12.06.2008 and the same matter is still pending. As such, the question of granting any promotion to the applicant after 22.01.2008, does not arise based on DOPT's OM dated 9 OA No. 523/2016 14.09.1992. The OA is, therefore, liable to be dismissed.
It is stated that order dated 01.04.2009 passed by the Hon'ble High Court of Bombay in Criminal Application No.2851/2008 does not help the case of the applicant since criminal proceeding although is stayed, prosecution is still pending. Since two prosecutions for different offences are pending against the applicant, he was not considered for promotion. The OA is, therefore, liable to be dismissed since the applicant was not cleared from vigilance angle.
6. Both the parties then filed further pleadings in the form of Rejoinder and Sur- rejoinder reiterating their stand taken in the OA and reply respectively for claiming the benefit and ascertaining that since prosecution is pending against the applicant, the recommendations of the DPC are kept in a sealed cover which can be opened only on final outcome of the pending criminal case.
7. On 09.10.2017 when the matter was called out for final hearing, we have heard the applicant who appeared in person and the reply arguments of Shri R.R. Shetty, learned Advocate 10 OA No. 523/2016 for the Respondents.
8. We have carefully gone through the entire pleadings of the parties and the documents relied upon by the applicant and various OMs issued by DOPT on the subject, as referred by the applicant.
9. We have also gone through the citations of decisions relied upon by the applicant in support of his contentions to the effect that although criminal prosecution is pending in the Court which is stayed by the Hon'ble High Court and since charge is yet to be framed against him for the alleged offenses, the respondents should have considered him for adhoc promotion to the post of Deputy Director in STS.
10. As against this, according to respondents since criminal prosecutions are still pending against the applicant and although charge is not framed against him, sealed cover containing recommendations of DPC cannot be opened till decision of the pending prosecutions and till then there is no question of granting even adhoc promotion to the applicant.
11. We have given our thoughtful considerations to the submissions advanced before us by both the parties and law laid down 11 OA No. 523/2016 on the issue.
FINDINGS
12. Before proceeding to consider the legality and validity of the impugned order dated 07.06.2016 (Annexure A-1), we would like to consider the objection regarding limitation to approach this Tribunal. Obviously, the applicant is claiming promotion from 09.10.2012. Although his case was considered twice he could not be granted promotion for want of Annual Confidential Reports of the relevant years. It appears that those Annual Confidential Report were not written by the Reporting and Reviewing officer for the reasons best known to the respondents. However, unfortunately for want of those reports, the applicant's name could not be included in the panel for promotion provided he was otherwise found fit. Thereafter, he submitted representation dated 08.07.2015 after taking recourse to the provisions of RTI Act. The said representation was decided by the impugned order dated 07.06.2016 which was done in compliance of the directions issued by this Tribunal in the previous OA. From the date of impugned order the OA is filed within one year.
13. However, it is obvious that cause of 12 OA No. 523/2016 action to approach this Tribunal in fact arose on 09.10.2012 when his immediate junior was promoted. It is obvious that applicant was not in zone of consideration and hence juniors were promoted prior to 09.10.2012. Hence, cause of action in fact accrued on 09.10.2012. Submission of representation was however delayed by the applicant till the year 2015. However, considering the peculiar facts of the case and especially when adhoc promotion is sought and legal issues of paramount importance are involved in the matter which can be decided only on merit. Hence, although there is delay of more than three years in approaching this Tribunal, the same is hereby condoned in the interest of justice.
14. Turning to the merits of the case, the impugned order shows that the applicant's case was considered by the DPC on 29.08.2012 and 04.09.2012 for promotion to the grade of Deputy Director. However, his case was deferred for want of three years ACRs during the period from 2007-08 to 2010-11 except that of the year 2009-
10. In the next year also the applicant's case was considered by DPC on 18.04.2013, 06.06.2013 & 10.06.2013. However, this time also out of 13 OA No. 523/2016 four years ACRs for the period from 2008-09 to 2011-12, ACR for the period 2009-10 and 2011-12 only were available in respect of the applicant and for remaining two years NRC (No Report Certification) were issued. It is obvious that the applicant has not challenged the aforesaid decisions of the DPC and hence it can safely be said that the acquiesced/accepted if the said decision. In this OA also he has not challenged said decision since no grounds are raised by him in para 5 of the OA, although promotion is claimed from 09.10.2012 on another ground. In the next year also i.e. in the DPC held in 2014- 2015 and 2016 the applicant's case was again considered. However, recommendations of DPC were kept in a sealed cover since it was noticed that the applicant was facing a criminal prosecution and since there was no vigilance clearance, his representation was rejected.
15. The main thrust of the respondents for rejection of the claim is on the DOPT's OM dated 14.09.1992 (Annexure A-6) which has been issued in pursuance of the decision rendered by the Hon'ble Supreme Court in a landmark case of Union of India Vs. K.V. Janakiraman, AIR 1991 SC 2010, under the caption "promotion of Government servants 14 OA No. 523/2016 against whom disciplinary/court proceedings are pending or whose conduct is under investigation
- Procedure and guidelines to be followed". The relevant portion is para 2 thereof which reads as under;-
"2. At the time of consideration of the cases of Government servant for promotion details of Government servant in the consideration zone for promotion falling under the following category should be specifically brought to the notice of the Departmental Promotion Committee.
i) Government servants under suspension
ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and
iii) Government servants in respect of whom prosecution for criminal charge is pending.
16. Admittedly, the applicant was not under suspension nor any charge-sheet has been issued or any disciplinary proceeding was pending against him when his case was considered by DPC in the year 2012 to 2016. However, the applicant's case is governed under Clause 2(iii) of the aforesaid OM, since prosecution for criminal charge was found to be pending against him.
17. In this respect the applicant submitted that he has challenged FIR before the Hon'ble High Court in Criminal Application No.2851/2008 under Section 428 of the Criminal procedure Code 15 OA No. 523/2016 1973 for quashing of the said FIR registered against him at Sion Police Station for the offence punishable under Section 420, 465, 477 & 471 of IPC. By the order dated 01.04.2009 (Annexure A-5) the Hon'ble High Court stayed the prosecution. Perusal of the said order shows that prosecution was filed against the applicant for indulging in fabrication of bank documents and cheating the complainant. Para 5 of the order passed by the Hon'ble High Court reads as under;
"....5. The Applicant claims that all the transactions with the bank have been with consent and knowledge of respondent no.2. He claims to have long standing friendship with respondent no.2. There are statements of the bank officers recorded by the police during investigation. The statements show that the applicant and respondent no.2 used to always visit the bank together. They are very well acquainted with each other. For opening DEMAT Account also, they had come together. For that Account, respondent no.2 has declared the applicant as her nominee. When the delivery slip book was handed over both were present and the applicant has signed the receipt on behalf of respondent no.2 in her presence. Thus, the matter requires consideration. Hence, Rule. Interim relief in terms of prayer clause (ii)."
18. It is thus obvious that the said criminal prosecution was stayed by the Hon'ble High Court till decision on merit of the challenge to the FIR. It is stated by the applicant that the said criminal application is still pending before the Hon'ble High Court. However, the 16 OA No. 523/2016 fact remains that although further proceedings are stayed, the criminal prosecution is still pending which can be decided only after final outcome of pending Criminal Application No.2851/2008 by the Hon'ble High Court. It is obvious from record that the charges are yet to be framed against the applicant in the said prosecution and on its basis the applicant vehemently submitted that clause 2(iii) of the OM dated 14.09.1992 is not attracted based on the decisions rendered by Hon'ble Supreme Court and various Benches of this Tribunal, criminal prosecution is said to be initiated only after framing of the charge and till then it can be said that the criminal prosecution is simply filed against the accused. Strictly speaking person against whom a criminal prosecution is filed can be termed as accused in that proceeding only after framing of the charge against him. This is so because even before framing of charge, a person against whom a prosecution is lodged can seek discharge and the Criminal Court can consider his request and pass appropriate order discharging him by dropping the prosecution after considering the material produced on record.
17 OA No. 523/2016
19. We are in agreement with the aforesaid submission of the applicant, since the words used in clause 2(iii) are "in respect of whom prosecution for criminal charge is pending and not in respect of whom a criminal case is filed". This aspect has been considered in various decisions relied upon by the applicant, which we shall refer briefly herein below.
20. Central Administrative Tribunal Ernakulam Bench has an occasion to decide the above issue in OA No.1096/2011, Manoj Kumar Vs. Union of India & Ors. Decided on 21.02.2012. In that case also the applicant therein and several others were accused in two criminal cases. When the respondents constituted DPC for considering promotion to various officials which included the applicants also a sealed cover procedure was adopted on the ground that prosecution was pending against him. This was in accordance with the decision rendered in K.V. Janakiraman (referred supra). Relevant portion from the decision in aforesaid case itself is quoted in the following words;
"After elaborate discussion on the issue and after reference to the various decision of the Apex Court, it was held that sealed cover procedure could be adopted when charge sheet is framed by the Court and 18 OA No. 523/2016 not earlier. This Tribunal made reference to the decision of S.K. Sinha, Chief Enforcement Officer Vs. Videocon International Ltd., (2008) 2 SCC 492. In para 17 of the Tribunal's order it was held that during the course of investigation, the alleged offender is not termed as 'accused'. It is only when the charges are framed that the offender is termed, "accused." The Apex Court has in the case of Esher Singh Vs. State of A.P. (2004) 11 SCC 585 held that "The person becomes an accused for the purpose of trial after the charges are framed."
21. It is obvious from the law laid down in K.V. Janakiraman's (referred supra) that the DOPT has incorporated clause 2(iii) in OM dated 14.09.1992 which is fully in accordance with the law laid down in K.V. Janakiraman's case. In janakiraman's case it is nowhere stated that sealed cover procedure can be adopted if a criminal case is filed against the Government servant. It is obvious that the said procedure can be adopted only if in a pending criminal prosecution charges are settled/framed against the Government servant for the offence and till then there is no question of adopting the sealed cover procedure, only because a criminal case is pending against the Government servant. This follows that, if DPC is held at any time prior to framing of the charge against the applicant by the competent Criminal Court in a pending case, his case can still be considered by the DPC without resorting to sealed cover procedure. 19 OA No. 523/2016 Same thing has happened in the present case, since it appears from record that when the applicant's case was considered by the DPC in the year 2014, 2015 or 2016, charges were yet to be framed against the applicant for the offences punishable under Sections 420, 465, 477 & 471 of IPC. This is however for the reason that Hon'ble High Court has granted stay to the prosecution at applicants instance.
22. It is pointed out by the applicant himself in the Rejoinder that another offence under Section 323, 504, 506(2) of IPC is registered against him at Dadar Railway Police Station on 15.11.2007. In this respect, the applicant himself submitted that the aforesaid FIR has been lodged by private person against him as a counter-blast since initially he had lodged a report against the said person i.e. complainant in the aforesaid FIR. It appears that the said prosecution is still pending although it is not made clear by applicant if charges are framed against him in that case.
23. Another decision relied upon by the applicant is rendered by Hon'ble High Court of Madras in P. Periswamy Vs. Commissioner of Transport decided on 19.08.2016. In that case, the applicant was 20 OA No. 523/2016 involved in a case of acceptance of gratification although he was placed under suspension, the same was subsequently revoked. Rule 4(a) of Tamil Nadu State and Subordinate Service law was considered in that case and relying on the previous decision rendered by the Full Bench of the same Hon'ble High Court of Madras in Deputy Inspector General of Police Vs. P. Rani in which it was held that there cannot be an absolute bar on promotion and also held that the above Government order does not cover case the case of prolonged pendency of criminal case. Considering this fact, writ petition was disposed of with a direction to the respondents to promote the petitioners therein pending the prosecution for 11 long years. In the present case also the two prosecutions of the year 2008 still appear to be pending, although one of it is stayed by the Hon'ble High Court. The applicant in such circumstances is justified in saying that pending prosecution he should atleast be granted adhoc promotion.
24. In this respect the learned Advocate for the Respondents by referring DOPT's OM dated 08.08.2012 (Annexure A-12) submitted that the Government servant against whom criminal 21 OA No. 523/2016 prosecution are pending there cases are required to be reviewed every two years for grant of promotion. It appears that the applicant's case had not been reviewed after 29.06.2014. When for the first time DPC adopted sealed cover procedure, in the light of pending prosecution against him, although he was again considered in the year 2015 and 2016, when his case was considered lastly in 2016 after 2 years then adopting sealed cover procedure, he should have been considered for adhoc promotion by opening sealed cover. Thus the Applicant's case although was reviewed by DPC held in 2015 and 2016, promotion was not granted to him only on ground of pending prosecution against him. It is, therefore, necessary for the respondents to review the applicant's case since the prosecutions are pending against him for a period exceeding two years and it cannot be anticipated as to when it will come to an end finally.
25. During the course of the arguments, the applicant in support of his contention held that a person becomes an accused for the purpose of trial only after charges are framed against him. Reliance is placed on the decision rendered by 22 OA No. 523/2016 Hon'ble Supeme Court in Esher Singh Vs. State of A.P., (2004) 11 SCC 585. The applicant has also relied upon a decision rendered by Hon'ble Supreme Court in Union of India Vs. Sangram Keshari Nayak, (2006) 6 SCC 704 in which it has been held that for adopting sealed cover procedure, conditions for adopting the sealed cover procedure must have existed at the material point of time. It is further held that even if the charges are framed in the near future, the same shall not affect the process of opening the sealed cover and acting on the same. Thus, the Hon'ble Supreme Court had gone ahead in laying down the law that even after framing of the charge the Government servant can be considered for promotion by opening the sealed cover, which procedure was adopted when the DPC was held and at that time criminal prosecution was then pending against Government servant. In any case, we are of the considered view that the applicant is justified in saying that the respondents should open the sealed cover and should review his case for grant of adhoc promotion pending criminal prosecution against him.
26. During the course of arguments, the applicant placed reliance on the decision 23 OA No. 523/2016 rendered by Hon'ble Principal Bench, Central Administrative Tribunal, New Delhi in OA No.1519/2008, R.S. Gupta Vs. Government of National Capital Territory of Delhi decided on 24.02.2009. It is submitted that in that case the issue regarding non- availability of ACRs to be placed before DPC at the relevant time for consideration of the Government servant's claim for promotion was involved. It was held that where one or more ACRs have not been written for any reason during the relevant period, the DPC should consider the ACRs of the years preceding the period in question and if in any case even these are not available, the DPC should take the ACRs of the lower grade into account to complete the number of ACRs required to be considered. It is further held that if this is also not possible, all the available ACRs should be taken into account. In the present case, although the ACRs of three years were not available as stated earlier on two occasions when DPC was held, the applicant has not approached this Tribunal at the relevant time for challenging decision of DPC not to empanel him for want of ACRs. Even his ACRs for the previous years could not be considered since four years ACRs were only 24 OA No. 523/2016 required from the year of joining the service by the applicant. He was a direct recruit and hence there is no question of considering his ACR in the lower post. In any case on the basis of the said decision, no relief can be granted to the applicant in this OA. Further, he is also claiming promotion w.e.f. 09.10.2012 when his immediate junior was promoted. For this reason also there is no question of granting any promotion to him prior to the aforesaid date. In this OA also applicant has not sought any relief nor has challenged decision of DPC held in the year 2012 and 2013 dropping him for want of ACRs. Hence, he has virtually accepted the said decision, which is not open to challenge.
27. The applicant further place reliance on the decision rendered by the Ernakulam Bench of Central Administrative Tribunal in Chacko Eapen Vs. Union of India & Ors., in OA No.941/2011 and 1131/2011 decided on 08.02.2012 in which a similar issue was involved when the promotion of the applicant therein was withheld on account of pending criminal case against him by adopting the sealed cover procedure. In that case also the charge was yet to be framed against the applicant. Hence quoting the relevant extract from the landmark 25 OA No. 523/2016 decision in K.V. Janakiraman (referred supra) it was held that as per the settled law prosecution for criminal charge can be said to be pending against the Government employee only after the Court has framed charges against him. In this respect the law laid down by the Hon'ble Supreme Court in K.V. Janakiraman's case is extracted below for ready reference;
"On the first question, viz. as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have been commenced, the Full Bench of the Tribunal has held that it is only when a charge memo in a disciplinary proceeding or a charge sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge memo/charge sheet is filed. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charges memo/charge sheet, it would not be in the interest of purity of administration to reward the employee with promotions, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many cases."
28. In the aforesaid judgment in Chacko's case a reference was made to the decision rendered by the Hon'ble Supreme Court in Union of India Vs.Sangram Keshari Nayak, (2006) 6 SCC 704 regarding steps to be taken for adopting sealed cover 26 OA No. 523/2016 procedure. The relevant portion is extracted below for ready reference;
""That for adopting the sealed cover procedure, conditions for adopting the sealed cover procedure must have existed at the material point of time. Thus, even if the charges are framed in the near future, the same shall not affect the process of opening the sealed cover and acting on the same. In respect of this part of the order, though the earlier order is slightly different, the same may not be taken to mean that the other order is overruled as this part of the order is only with reference to awarding of relief, which is certainly the discretion (judicious) of the Bench".
29. As stated earlier in the present case, it appears that when the applicant's case was considered by DPC in the year 2014, 2015 and 2016 although criminal case was instituted against him for some offences, a prosecution/ trial was yet to begin since charges were not then framed. This is obviously for the reason that the applicant approached the Hon'ble High Court challenging the FIR itself and secured stay to further proceeding arising out of said FIR. This being so, relying on the aforesaid law laid down by the Hon'ble Supreme Court and which is referred and followed by various Benches and Hon'ble High Courts, the applicant should have been granted adhoc promotion on the date when the case of his immediate junior was considered. However, it was refused only on the ground that a criminal prosecution was then 27 OA No. 523/2016 pending. It may be mentioned here that there is clearcut distinction between institution of criminal case and initiation of prosecution/ trial. In general parlance, whenever any offence is registered against a person and he is arrested, he is termed as accused. However, as held by the Hon'ble Supreme Court in number of cases, he can be termed as accused only on framing of specific charges against him in terms of FIR and till then he can be termed as offender only. In any case, we are of the considered view that the applicant is entitled to the relief sought.
30. The same view is taken in the following judgments relied upon by the applicant in support of his contentions namely;
a) Mahavir Singh Vs. Vice Chairman, DDA & Ors., in OA No.1461/2012 decided on 03.12.2012.
b) Brijendra Singh Meena Vs. State of Rajasthan & Ors., High Court of Rajasthan decided on 18.12.1997.
c) Ms. Sarita Bali Vs. Union of India & Ors., Principal Bench, Central Administrative Tribunal, New Delhi in OA No.2894/2011 with MA No.2093/2011 decided on 21.10.2011.
d) Deb Singh Bhakuni (Sr. A.O) Vs. Union 28 OA No. 523/2016 Public Service Commission in OA No.3448/2009, Principal Bench, Central Administrative Tribunal, New Delhi decided on 07.04.2010.
e) Rakesh Ahuja Vs. South Delhi Municipal Corporation, Principal Bench, Central Administrative Tribunal, New Delhi in OA No.2813/2014 decided on 20.02.2015.
31. In the last mentioned case of Rakesh Ahuja, provisions of clause 5 and 5.1 of the DOPT's OM dated 14.09.1992 referred earlier were considered in which it has been specifically provided that where the disciplinary case/criminal prosecution is pending for over two years, the Government employee should be given adhoc promotion. Thus, there is a provision of review after two years. Of course at the time of such review, sealed cover can be opened and recommendations of DPC enclosed therein should be considered. If at the time of holding the review DPC after two years of adopting sealed cover procedure for pending prosecution, and if he is found fit for promotion on the basis of his unblemished service record he should be granted adhoc promotion. Same analogy will be applicable in the present case also.
29 OA No. 523/2016
32. So far as the sealed cover procedure to be adopted by DPC while considering the Government employee for promotion, we have also carefully gone through the provisions of OM dated 10.04.1999 issued by DOPT under caption 'Departmental provisions and related matters consolidated instructions on'. We have also come across a decision rendered by the Hon'ble Supreme Court in Delhi Jal Board Vs. Mahinder Singh, (2000) 7 SCC 210 decided on 01.09.2000 in which this issue was considered, although it was a case of disciplinary proceeding pending against the Government employee when he was considered for promotion. The following observations are made. The same are reproduced here for ready reference;
"The right to be considered by the Departmental Promotion Committee is a fundamental right guaranteed under Article 16 of the Constitution of India, provided a person is eligible and is in the zone of consideration. The sealed cover procedure permits the question of his promotion to be kept in abeyance till the result of any pending disciplinary inquiry. But the findings of the disciplinary inquiry exonerating the officer would have to be given effect to as they obviously relate back to the date on which the charges are framed. If the disciplinary inquiry ended in his favour, it as as if the officer had not been subjected to any disciplinary inquiry. The sealed cover procedure was envisaged under the rules to give benefit of any assessment made by the Departmental Promotion Committee in favour of such an officer, if he had been found fit for promotion and if he was later exonerated in the disciplinary inquiry which was pending at the 30 OA No. 523/2016 time when DPC met. The mere fact that by the time the disciplinary proceedings in the first inquiry ended in his favour and by the time the sealed cover was opened to give effect to it, another departmental inquiry was started by the Department, would not, in our view, come in the way of giving him the benefit of the assessment by the first Departmental Promotion Committee in his favour in the anterior selection."
33. We have also come across another decision rendered by the Hon'ble Supreme Court on 15.03.2013 in Union of India & Ors. Vs. Anil Kumar Sarkar, Civil Appeal No.2537/2013 in which similar issue was involved when CBI lodged FIR against the respondent therein on different dates for the offences punishable under Section 120B, 420 of the Indian Penal Code and also for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The DPC refused the promotion to the applicant for pending prosecution against him. This decision was confirmed by the Gauhati Bench of Central Administrative Tribunal. However, the said decision was set aside by the Hon'ble High Court of Gauhati vide order dated 27.04.2010 in WP No.744/2010 and directed to grant promotion to the respondent therein. This was further challenged by the Department in the above referred Civil Appeal which has arisen out of SLP No.1933/2011. Referring the provisions of 31 OA No. 523/2016 DOPT's OM dated 14.09.1992 and the law laid down in K.V. Janakiraman's case (referred supra), it has been held in para 14 to 17 as under:
"...14. In Coal India Limited & Ors. Vs. Saroj Kumar Mishra, AIR 2007 SC1706, this Court, in para 22, has held that a departmental proceeding is ordinarily said to be initiated only when a charge-sheet is issued.
15. In Chairman-cum-Managing Director, Coal India Limited and Others Vs. Ananta Saha and others, (2011) 5 SCC 142, this Court held as under. "27. There can be no quarrel with the settled legal proposition that the disciplinary proceedings commence only when a charge-sheet is issued to the delinquent employee.
(Vide Union of India Vs. K.V. Jankiraman, (1991) 4 SCC 109 and UCO Bank Vs. Rajinder Lal Capoor, (2007) 6 SCC 694) "We also reiterate that the disciplinary proceedings commence only when a charge sheet is issued. Departmental proceeding is normally said to be initiated only when a charge sheet is issued.
16. Learned ASG, by drawing our attention to the decision of this Court in Union of India and Another Vs. R.S. Sharma, (2000) 4 SCC 394 submitted that in spite of decision of this Court in Jankiraman's case (supra) in view of para 7 of the office memorandum and in the light of the fact that proceedings were initiated both criminal and departmentally, the High Court committed an error by overlooking para 7 of sealed cover process and contended that the direction issued by it cannot be sustained. We have carefully gone through the factual position and the ultimate ratio laid down by this Court in R.S. Sharma's case (supra). Even though in the said decision, this Court has distinguished the decision in Jankiraman's case (supra) and held that the same is not applicable to its case, in the light of the conditions mentioned in para 2 as well as para 7 of the office memorandum dated 14.09.1992 and of the categorical finding that none of the conditions mentioned therein has been fulfilled, we are of the view that the decision in R.S. Sharma's case (supra) is not helpful to the case of the appellant.
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17. In the light of the above discussion and in view of factual position as highlighted in the earlier para as, we hold that the ratio laid down in Jankiraman's case (supra) are fully applicable to the case on hand, hence we are in agreement with the ultimate decision of the High Court. Consequently, the appeal filed by the Union of India fails and the same is dismissed. However, there will be no order as to costs."
34. From the above discussion, it is obvious that the impugned order declining to grant promotion to the applicant on adhoc basis, only on the ground that he is facing criminal prosecution is unsustainable. Even otherwise since the prosecution is pending for more than two years, from the date when DPC adopted sealed cover procedure in the year 2014 for the first time, the respondents should have reviewed his case based on the decision in Janakiraman's case and DOPT's OM dated 14.09.1992. It appears that it has not been done. In the meanwhile even if stay is vacated and charges are framed against applicant it hardly makes any difference since prosecution is launched way back in the year 2008 and it appears that it is still pending for final outcome on merit. The applicant, therefore, succeeds.
35.(a) In the result, the OA is allowed.
(b) The respondents are directed to hold a review DPC within a period of six weeks from the 33 OA No. 523/2016 date of receipt of a certified copy of this order to consider the applicant's claim for grant of adhoc promotion to the post of Deputy Director in STS, if he is otherwise found fit based on his service record till the year 2016-
17.
(c) The respondents are also directed to open the sealed cover containing recommendations of the previous DPC's held in the year 2014, 2015 and 2016 and it be placed before the review DPC' for its consideration.
(d) If the applicant is found fit for adhoc promotion to the post in STS as Deputy Director, the same be granted to him immediately on recommendations of the review DPC w.e.f. 09.10.2012.
(e) However, it is made clear that this will be on notional basis, without any monetary benefit to the applicant and subject to final outcome of the pending prosecution against him.
(f) The applicant is also directed to apprise the respondents regarding the final outcome of the pending criminal prosecution against him as and when it is concluded.
(g) It is further directed that before issuing promotion order as above, applicant will 34 OA No. 523/2016 be required to give an undertaking to respondents/HOD to the effect that he will be liable to reverted to substantive post in case pending criminal prosecution ended in his conviction.
(h) It is made clear that respondents will be at liberty to take any other action in accordance with law against applicant, if he is convicted.
(i) In the peculiar facts and circumstances of the case, the parties are directed to bear their respective cost of this OA.
(j) Issuance of certified copy of this order by the Registry to both the parties be expedited.
(R. Vijaykumar) (A.J. Rohee) Member (A) Member (J) dm.